Discovery of ESI requires significantly more planning at the outset than we ever did with paper discovery.

So the first question you need to know is — Who’s in charge of planning for and managing my eDiscovery?

Does your firm have dedicated eDiscovery counsel who have experience with both litigation strategy and in planning for, handling and navigating the discovery of ESI? Do they have a team behind them? If not, you’re missing opportunities to control costs, leverage better technology, and keep improving your processes.

You need an experienced litigation and eDiscovery attorney that will advise on each one of your cases, project management and great litigation support (whether data will be handled within the firm or outsourced). Think of your discovery counsel as the boss of your Formula One pit crew. Sure, you can have any mechanic change a tire, but would you want him in the pit crew during an Indy car race?

There are many, many important and strategic decisions to be made about discovery now that ESI is the main component, and they are not easy, or for the faint of heart. Here’s a breakdown of some of what your discovery counsel need to consider for each matter:

* The scope, volume of ESI and costs of what you need to preserve. What’s appropriate for preservation differs depending on many factors in the case — the issues, theories of liability, potential value/liability of the case, what your IT systems look like, etc. Many times negotiating the scope of preservation will save a client tens of thousands if not hundreds of thousands of dollars. Discovery counsel should get to know what you have, make decisions about what should be preserved, negotiate with the other side so there are no issues later claiming spoliation, and then work with you to take steps to preserve data. In-house and outside counsel are on the hook for failure to comply, so work together as a team.

* The scope, volume of ESI and costs of what you need to produce. Production should be a very small subset of what is preserved, and there are many approaches to production that can save considerable time and money for both sides. For example, instead of producing 10 custodians data for 2 years, analyze the data and talk to the custodians. Find out the real time frames covered by each and then confirm by looking at the data. Produce to the other side with the intent that if more ESI is needed after review, you’ll provide it. You save money handling less data, you have to review less and the other side reviews less. Who knows, you might even get to the actual issues faster.

* The scope, volume of ESI and costs of reviewing the ESI you are requesting. This category is a big one — it includes the form of production, what kinds of technology you’ll use for review and how you’ll handle review. Review is of course one of the biggest expenses in a case, and that’s partly because attorneys are still engaged in the old habit of requesting everything and then being overwhelmed by how much they get. Then the client has to pay for the review of hundreds of gigabytes of data. Yes, technology can make that faster, but it costs money too. What we’ve done in the past is collect a mass of data and then zero in on what we need. That costs tens of thousands of extra dollars when it comes to ESI.
Try a different approach. Zero in on what you need, and then spread out from there. You know that John Doe said he would accept the price of $.02 per widget? And that’s the main issue in the case? Start there. Get his email and then fan out.

If it doesn’t work, go back to doing it the old way. But you won’t.

* The technology that will be used for collection, processing and review for the matter. We’ll cover this more later, but oftentimes, firms have in-house solutions that are the default solutions no matter what kind of case it is. Other times, firms do a new RFP every time a case comes in to try and find out what’s the best pricing they can get for a solution. What you want is a firm that’s constantly evaluating tools and has different tools and relationships with providers for use in different situations. Have 10 GB to review for a third party subpoena response? An online solution where the client can upload the data directly and cut out collection costs may be the best solution. Need to review 2 TB of data across 20 firms? You need something different. Ask your firm what their practice is, and WHY. Is it in YOUR best interests? Or theirs? You also want to make sure that you are not paying for your lawyers to get up to speed on review platforms — training is on their dime, especially if they are charging a high hourly rate for associates to review.

* Whether contract review is the most economical choice for your project. Law firms have taken more and more towards utilizing contract review — is yours? What do they charge you? I think you’d be surprised at the rates for contract review attorneys — they’re very low. But you are getting lawyers who know the systems they use to review documents, and who are VERY experienced review attorneys. It’s a skill. It’s not drudge work, and it’s not what new associates should be trained on. You’re asking attorneys to make judgments about what’s relevant, privileged, HOT and key to your case. What are your firm’s practices regarding review? How will it work? What will you pay? How fast will the review happen? What will be the costs? Discovery counsel will be able to help navigate all of these questions for you.

* Discovery Management and Oversight. Your discovery counsel will also be responsible for keeping metrics on how much you are spending, whether by custodian or for handling a certain amount and type of data (harder to track). Using that information, you should be able to work with discovery counsel to implement better practices internally that will help reduce those costs AND the impact on the business. Discovery of ESI is disruptive. Discovery counsel should minimize disruption and add back to the process. Reporting, which we will cover later in this series, is another key part of oversight of the discovery process. Does your firm keep a running report of discovery decisions that can be revisited 6 months or years down the line? Lawyer turnover is a huge issue and reinventing the wheel happens all the time. Reporting and tracking cuts down on that need.

This list isn’t comprehensive, and because so many variables change on a daily basis in a case (Jack dropped his cell phone, it cracked in half and he threw it away 5 months after the duty to preserve arose; Margaret left the company and no one remembered to image her hard drive before IT wiped and reissued it; do we REALLY have to restore backup tapes?) — you need someone who has detailed knowledge of the case and can address those issues. Too often, eDiscovery counsel aren’t consulted at the outset of the case, they are brought in when an issue comes up. It’s too hard to gather all the facts needed at that point, and your ability to put a plug in the leak is significantly lessened.

These considerations are not ones that can be made by full time litigators and part time discovery counsel, or litigation tech support. And they are not decisions to be made by your provider that handles the data. The role of discovery counsel is COMPLETELY SEPARATE from your provider who handles your data. The provider and your discovery counsel need to work together to make sure that the process is handled in the most efficient, effective way for the case that meets all of the needs of both parties.

Lit tech support needs an attorney that they can work directly with to make decisions. Most lit tech support folks that I talk with CRAVE that desperately. They want input. They want to do their jobs well, but they are not experienced litigators who know how these issues play out in court. They can’t think the steps ahead that are so crucial.

Ask your firm — who manages the lit tech support for my case? Who’s providing them with all the inputs listed above?

Of course, the level of involvement of Discovery counsel will vary depending on the size and complexity of the case. But the more regular your use of consistent discovery practices, techniques and technology, the smoother and less expensive it will be for all types of matters.

If you’re the defendant, you need someone that knows your systems and can make good, fast decisions about what needs to be collected and reviewed, and who knows how to minimize business interruptions to do it.

Plaintiffs’ counsel need an attorney that can identify what types of ESI may exist and what will be the most relevant and how to get what you need without being overwhelmed by an expense you can’t handle. When you operate on a contingency, planning for eDiscovery is crucial. You can’t win your case without evidence, but you can’t break the bank to get it either.

The typical response to who manages my discovery is “my litigator knows what we need.” Does he or she? It has rarely been my experience (although there ARE exceptions) that litigators know either the law that relates to eDiscovery or the technology involved. In one of my recent cases for a long standing client, I clashed with senior litigators from two very well respected Am Law 100 firms who wanted to collect an additional year of email for 10 custodians that wasn’t necessary. How did I know it wasn’t necessary? I looked at the data in the client’s system. Because I knew how to do that. We spent about $1000 reviewing the data to decide not to include it. If we had included it, based on the per GB cost to handle the data, we would have spent another $40,000, not including review costs.

Make sure you have the right person managing your eDiscovery. Know who that is, what they will do for you, and who’s behind them. Because if your firm isn’t doing it, you need to.